Young v. Wise

7 Wis. 128

• Court: Wisconsin Supreme Court
• Decided: January 15, 1859
• Status: Published

Opinion

By the Court,

Cole J.

The judgment of the circuit court, in this case, must be reversed upon the sole ground that the execution under which the sheriff Olive justified is fair and regular upon its face, and nothing appears in the process to apprize the officer of any want of jurisdiction on the part of the justice who issued it, and therefore the officer ought to be protected. Sprague vs. Birchard, Wis R. 457, and the cases there cited.

The circuit court instructed the jury that the execution was only a protection to the officer in making the levy, but not in making the sale. This is clearly erroneous, and was calculated to mislead the jury.

We expressly reserve our opinion upon the question as to whether the judgment obtained against Young in the garnishee proceeding was of any validity. For assuming that this judgment was void and would not afford any protection to the party or his attorney who should institute any proceedings under it; still as the justification of the officer was sufficient and there was a joint recovery, there must be a new trial.

The judgment of the circuit court reversed and a new trial ordered.